Prevention vs. Prosecution ADAP Advocacy Association 6 th Annual Conference Town Hall Meeting

1. Prevention vs. Prosecution ADAP Advocacy Association 6th Annual Conference Town Hall Meeting HIV Criminalization and its Impact on Access to Care Washington, DC July 7, 2013

2. What is HIV Criminalization? • HIV criminalization is the inappropriate use of one’s HIV status in a criminal proceeding • Statutes that punish the failure to disclose one’s HIV+ status prior to sex, or • Enhance sentencing for HIV+ people charged with certain crimes • About 2/3 of U.S. States and Territories have “HIV-specific” statutes

3. ROBERT: Map of the U.S. here showing states with statutes?

4. But Geography is No Protection • Even in states without an “HIV-specific” statute, PLWHA can face heightened charges or penalties simply because they have HIV • TX and NY: no HIV specific law, but Willie Campbell serving 35 years in TX and David Plunkett served more than 6 years in NY for spitting • Sero has documented more than 1,000 instances when HIV specific charges filed

5. How Did This Happen? • Grew out of early quarantine, mandatory testing, occupational and travel restrictions and control efforts in the 1980s • American Legislative Exchange Council • President Reagan’s AIDS Commission • Initial Ryan White Care Act Requirement

6. Result? • Initially seldom used except against heterosexual African-American men • Started to change mid-90s after introduction of protease inhibitors • Mandatory names reporting facilitates prosecutions; test acknowledgement forms have shown up in court • People with HIV now seen as viral vectors, potential infectors and inherently dangerous

7. Today • HIV transmission rarely a factor (<10%) • 25% of recent cases are for spitting, scratching and biting • Condom or low viral load not a defense • Every person with HIV one disgruntled ex-partner away from a courtroom

8. ROBERT Can we load pix of here

9. Sero Criminalization Survey • Survey of 2,000 people with HIV in the U.S. • Paints picture of profoundly disabling legal environment for people with HIV • Don’t know if subject to a statute, what behaviors put them in legal jeopardy, no confidence of fair treatment in a courtroom • >25% know people afraid to be tested for fear of criminalization

10. HIV Criminalization… • Discourages testing and does not reduce risky behavior • Undercuts personal responsibility message, tells HIV neg people that HIV prevention isn’t their job • Creates an illusion of safety for those negative or untested and encourages blame • Reinforces stigma and misconceptions about real routes, risks and consequences of HIV transmission

11. “Take The Test And Risk Arrest” • Communities most at HIV risk & in need of testing (AA MSM, sex workers, immigrants) are often those most distrustful of criminal justice system • Criminalization punishes desired behavior—getting tested—and privileges ignorance • Most new HIV infections are from those who don’t know they have HIV, and therefore can’t be prosecuted for non-disclosure

12. And Those Testing Positive? • Criminalization causes distrust of public health so people less likely to cooperate with partner notification (O’Bryne) • Makes it more difficult for them to disclose for fear of past catching up with them and less likely to access care (Sero survey) • Creates weapon used in abusive relationships (Kelly at IAS)

13. HIV Criminalization is a Public Health Disaster • Has not achieved intended purpose to reduce transmission and increase disclosure • Growing evidence base points to HIV criminalization as exacerbating, not reducing, HIV transmission • HIV criminalization reform is a compelling and necessary HIV prevention strategy

14. HIV is Uniquely Stigmatized • More women in the U.S. die of cervical cancer—from HPV—than die of AIDS • There are other dangerous and potentially deadly sexually transmitted pathogens • Risk isn’t one-dimensional; what about the risk of transmission of flu or other pathogens to people with compromised immune systems?

15. Three Stages of Understanding • Punishments vastly disproportionate; sometimes more than for rape or manslaughter • Different laws for different people based on immutable characteristics is wrong (whether gender, race, sexual orientation, genetic makeup, physical ability, etc.) • Question really concerns the role of the criminal law—if any—in the context of sexually transmitted pathogens

16. Criminal Law Should Consider • Was there genuinely an intent to harm? • How much risk was present? • Was a harm inflicted? (like transmission) • Like harms should be treated alike, can’t disproportionate prosecute people with one stigmatized virus

17. What About Reckless Disregard or “One Man Epidemics” • Most salient illness is generally a mental illness, rather than a viral one • Best handled within public health system • Every state has assault statutes to address those with a malicious intent • Every state has public health statutes that allow intervention when someone poses an imminent danger to themselves or others

18. Policy Leaders Mobilizing • National HIV/AIDS Strategy • Presidential Advisory Council on HIV/AIDS • Lee/Ros-Lehtinen Amendment to Defense bill

19. HR 1843: Repeal Existing Policies that Encourage & Allow Legal HIV Discrimination Act Introduced 5/7/2013 Reps. Barbara Lee (D-CA) Ileana Ros-Lehtinen (R-FL)

20. HR 1843 • The bill requires Attorney General, the Secretary of Health, and the Secretary of Defense to: • Work with state to review laws, policies and cases that impose criminal liability on people living with HIV • Develop a set of best practices; issue guidance to states; Monitor whether/how states change policies

21. Status of HR 1843 • Bipartisan, co-sponsored with Rep. Ileana Ros-Lehtinen (R-FL) • No cost legislation • 27 co-sponsors (as of 6/24/2013) • Referred to the Committee on the Judiciary, &in addition to the Committees on Energy and Commerce, and Armed Services

22. Small Victory! • June 13-- Reps. Lee and Ros-Lehtinen offered an amendment to the National Defense Authorization Act calling for a report on Uniform Code of Military Justice and recommendations for updating military laws and policies • Amendment passed the House with Unanimous Consent

23. HR 1843 Target List Possible Republican Co-Sponsors Chris Gibson (R-NY) Walter Jones (R-NC) Justin Amash(R-MI) Frank LoBiondo (R-NJ) Pat Meehan (R-PA) Ileana Ros-Lehtinen (R-FL) <already co- sponsor> Mike Fitzpatrick (R-PA)

24. HR 1843 Target List Possible Republican Co-Sponsors Cont’d Chris Smith (R-NJ) Michael Grimm (R-NY) Charlie Dent (R-PA) Don Young (R-AK) Dave Reichert (R-WA) Peter King (R-NY) Jon Runyan (R-NJ) John Duncan (R-TN)

25. Grassroots Advocacy & Mobilization for the REPEAL Act What You Can Do As An Advocate

26. ROBERT: INSERT PIC OF IMAGE FROM FB PAGE HERE?

27. What You Can Do Support HIV Criminalization reform Encourage your legislator to co-sponsor HR 1843 Endorse PACHA resolution, PJP Consensus Statement Educate your communities (forums, conferences, speakers) Encourage viewing of “HIV is Not a Crime” short film Convene stakeholders to develop strategy Work as hard to eliminate factors that drive stigma and are cultural barriers to testing as you do to promote testing and removal of institutional barriers to testing

28. What You Can Do • CHLP Toolkit - • http://www.hivlawandpolicy.org/resources/ view/844 • – Look for similar toolkits with many other organizations • USCA – Look for several panels on criminalization from various partners

29. Sero

30. Thank you SeroProject.com